Update: Holiday Displays And The Establishment Clause

By BETH ANNE JANICKI, Staff Attorney, Illinois Municipal League

In the November 1991 issue of The Municipal Review, I reported on the case of Doe v. Small, No. 89-3796, ___ F.2d ___ (7th Cir. 1992) wherein the Seventh Circuit held that a display in a public park of paintings depicting the life of Christ was a violation of the Establishment Clause. On October 22, 1991, the defendant's petition for a rehearing en banc was granted, vacating the earlier opinion. On May 15, 1992, the Seventh Circuit issued an opinion vacating the federal district court's earlier injunction against the city which permanently prohibited all parties from displaying the religious paintings in the city park.

The Seventh Circuit held that the district court's injunction was overbroad because it restrained the speech of parties who were not a part of the litigation. The court held that the presence of religious symbols in a public place does not itself create a violation of the Establishment Clause as the government cannot be presumed to endorse every speaker in a public forum that it does not censor. Thus, the permanent injunction entered by the district court which prohibited all groups from displaying the religious paintings was not sufficiently tailored to cure the problem and was vacated. The district court's holding that the city violated the Establishment Clause was not reversed, as the city was not a party to the appeal. •

August 1992 / Illinois Municipal Review / Page 25